Supreme Court Opens New Term Surrounded by Kavanaugh-Driven Uncertainty

(Bloomberg) -- The U.S. Supreme Court starts its new term under a cloud of uncertainty as the drama over Brett Kavanaugh’s nomination at least temporarily delays dreams of a conservative legal revolution.

The justices take the bench at 10 a.m. Washington time Monday to hear arguments in the first of 42 cases they’ve agreed to decide during the nine-month term.

Most of the current cases are low-profile ones. But in early 2019 the court will probably have to revisit the issue of partisan gerrymandering. The justices might also consider whether federal law bars job discrimination on the basis of sexual orientation and gender identity, and whether President Donald Trump can rescind deportation protections for young undocumented immigrants.

The question is whether the court will take up those issues with the full bench and robust conservative majority Republicans envisioned when Trump nominated Kavanaugh in July. His nomination is on hold for a week while the FBI investigates sexual assault allegations against him.

For now the court will hear cases with eight justices -- and an empty space at one end of the mahogany bench -- probably scheduling rearguments for any that require a tie-breaking vote.

Gopher Frog

Up first on Monday is a clash over the reach of the Endangered Species Act and the designation of privately owned land in Louisiana as critical habitat for the dusky gopher frog. The animal doesn’t live on the property and couldn’t do so without modifications to the land.

The next day the court will consider whether a state can execute someone whose mental disability leaves him with no memory of the murder he committed. In November the court will hear an appeal by a death-row inmate who says his rare medical condition means Missouri’s lethal-injection method probably would cause him to choke on his own blood.

The court also will also consider a class-action settlement involving Alphabet Inc.’s Google, an antitrust suit against Apple Inc. over its iPhone apps, and an appeal from an investment banker accused by federal regulators of duping investors.

The low profile may be short-lived, but it probably suits the court’s current inclinations, says Kannon Shanmugam, a lawyer with Williams & Connolly LLP in Washington who’s scheduled to argue four cases before the court this term.

“I wouldn’t be surprised if the court at least wants to have a little bit of breathing space after the conclusion of this confirmation process,” he said.

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